A Lawyer v New Zealand Law Society

[2021] NZHC 995

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-000970

[2021] NZHC 995

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review of the exercise3 of statutory power by a body constituted under s 126 of the Lawyers and

Conveyancers Act 2006

BETWEEN

A LAWYER

Applicant

AND

NEW ZEALAND LAW SOCIETY

First Respondent

AND

WELLINGTON STANDARDS COMMITTEE NO 2

Second Respondent

Hearing:	On the papers
Counsel:	F E Geiringer and J K Mahuta-Coye for Applicant P N Collins for Respondents
Judgment:	5 May 2021

JUDGMENT OF NATION J AS TO COSTS

[1]                 In these proceedings, the applicant sought judicial review of decisions by a Standards Committee of the New Zealand Law Society (NZLS) to enquire into and appoint an investigator in respect of complaints made to the NZLS about the applicant

A LAWYER v NEW ZEALAND LAW SOCIETY [2021] NZHC 995 [5 May 2021]

in 2015. In August 2019, the applicant was unsuccessful in seeking judicial review.1 In the conclusion to the Court’s judgment, Thomas J observed:2

… that the Lawyer has already pursued the statutory review procedures and failed. It is in the interests of the Complainants, the Lawyer, and the public that the Complaints be investigated and decisions made in an informed manner with minimal further delay.

[2]                 The applicant filed an appeal in the Court of Appeal. The applicant completed the Court of Appeal’s processes for filing a case on appeal and requested a fixture on 9 December 2019. For reasons arising out of COVID-19 issues and the availability of counsel, the appeal was set down for hearing on 3 December 2020.

[3]                 On 27 May 2020, the respondents indicated they were not willing to wait for the outcome of the appeal and intended to continue with the investigation process.

[4]                 On 9 July 2020, the applicant applied for interim relief under r 12(3)(b) of the Court of Appeal (Civil) Rules 2005 enjoining the respondents from taking any further steps in relation to the complainants procedures that were the subject of the proceeding until the Court of Appeal gave judgment on the appeal. At the same time, counsel filed a memorandum in support.

[5]The application was opposed by the first and second respondents.

[6]                 Counsel for the respondents filed submissions in opposition to the application on 30 July 2020. Counsel for the applicant filed submissions in reply on 20 August 2020.

[7]                 Dobson J determined the matter on the papers in a judgment of 26 August 2020.3 He declined the application. In his judgment, he recorded that the primary ground for seeking a stay was that the applicant’s appeal rights would be rendered nugatory if further steps were taken in the complaints process before the Court of Appeal’s judgment was delivered. Dobson J rejected that ground.

1      A Lawyer v New Zealand Law Society [2019] NZHC 1961.

2 At [118].

3      A Lawyer v New Zealand Law Society [2020] NZHC 2173.

[8]                 He said the second ground was that one of the complainants whose complaints were being investigated refuses to comply with confidentiality obligations in relation to the matter, would publicise steps being undertaken in the investigation process to embarrass the applicant and, in doing so, would unfairly prejudice the applicant and others who have interests that conflict with those of that complainant.

[9]                 Dobson J held the risk of such breaches of confidentiality could tip the scales in favour of a stay unless adequate safeguards could be applied to prevent that occurring.

[10]             Recognising that concern, Dobson J declined the stay but on condition that the relevant parties provide undertakings to ensure all would respect confidentiality obligations with the threat of sanctions for contempt of Court if they did not do so.

[11]             Dobson J also stated that costs on the application were “to be considered in light of the substantive outcome in the Court of Appeal”.4

[12]             On 17 March 2021, counsel for the respondents, by memorandum, advised that the Court of Appeal had delivered its judgment on 8 March 2021 dismissing the appeal. The respondents sought costs on the interlocutory application for interim relief. Costs were sought on a 2B basis in the sum of $5,975 for the filing of the notice of opposition, filing memorandum for a case management conference and the preparation of written submissions.

[13]             Counsel for the applicant filed a memorandum in opposition. The applicant accepts that costs have been correctly calculated at $5,975 on a 2B basis, but asserted it was the applicant who had been successful on the application because Dobson J had put in place adequate safeguards to ensure there was no breach of confidentiality obligations that would prejudice the applicant. The applicant argued that costs of

$5,975 should be awarded to her.

[14]With Dobson J having retired, I deal with the matter as Duty Judge.

4 At [20].

[15]             I am satisfied that, for the purpose of determining costs, the respondents were the successful party on the application for interim relief. The application sought to restrain the respondents from taking any further steps in the investigation of the complaints. The respondents successfully resisted the application in that regard.

[16]             Through submissions, the applicant did pursue the application on the basis breaches of confidentiality would unfairly cause prejudice to her if further steps were taken in the investigation. That was not a ground referred to when the application was made.

[17]             Counsel for the applicant did submit that the Court needed to have regard to the applicant’s concern as to potential confidentiality breaches but the applicant had referred to those grounds as justifying the granting of interim relief as sought. The applicant was not successful in obtaining the relief sought on that ground.

[18]             The respondents were successful in opposing the application for interim relief. They are entitled to costs. I order the applicant to pay the respondents, jointly and severally, costs in the sum of $5,975.

Solicitors:

Woodward Law Offices, Lower Hutt for Applicant.